Jennifer K. v. Shane K.

• Decision Date: 07 April 2020
• Docket Number: A155111
• Court: California Court of Appeals Court of Appeals
• Parties: JENNIFER K., Plaintiff and Appellant, v. SHANE K., Defendant and Respondent.

47 Cal.App.5th 558

261 Cal.Rptr.3d 84

JENNIFER K., Plaintiff and Appellant,

v.SHANE K., Defendant and Respondent.

A155111

Court of Appeal, First District, Division 2, California.

Filed April 7, 2020

Perry, Johnson, Anderson, Miller & Moskowitz, Deborah S. Bull, Santa Rosa, for Appellant

Sheppard, Mullin, Richter & Hampton, Robert T. Sturgeon, Los Angeles, Domestic Violence Legal Empowerment and Appeals Project Family Violence Appellate Project, Arnold & Porter Kaye Scholer, Trenton H. Norris, Amy Endicott, Shannon Morrissey, San Francisco, Legal Momentum, Jennifer M. Becker, pro hac vice, Lynn Hecht Schafran, pro hac vice, for Amicus Curiae Sheppard, Mullin, Richter & Hampton On behalf of Appellant

Shane K., in pro. per.; Lvovich & Szucsko, Terry A. Szucsko, San Francisco, Hannah R. Salass, for Respondent

Kline, P.J. Appellant Jennifer K. and respondent Shane K. are the parents of a daughter they have jointly parented since her birth in 2009. On December 22, 2017, 10 years after a "dating" relationship had ended, appellant filed a request for a domestic violence restraining order (DVRO) from the San Francisco County Superior Court. The request stated that respondent "has been verbally abusive and physically violent with me since I met him in July or August of 2007. In fact, though I love her dearly and feel grateful every day to be her parent, our daughter is the product of a rape that [respondent] perpetrated on me in 2009, a week after I had stopped dating him. It began while I was asleep and continued after I resisted. Since this happened so long ago, I will spare the court the details; I raised this to shed light on my fear of [respondent] and why it is reasonable, my having endured his abuse for many years, abuse which continues."

The request for a DVRO went on to describe the alleged rape and certain other violent acts assertedly demonstrating respondent’s abusive treatment of appellant since the birth of their daughter. These matters were the subject of a bench trial lasting six afternoons, at which the court heard the testimony of the parties and 18 other witnesses, 8 on behalf of appellant and 10 on behalf of respondent.

On May 23, 2018, after the receipt of testimony and closing arguments of counsel, the court denied appellant’s request for a DVRO, dissolved all provisions of the temporary restraining order that had been granted pending the hearing on the DVRO, and explained from the bench the bases of its determinations at considerable length.

Appellant asks this court to reverse denial of the restraining order, issue a protective order, reverse the custody order, and remand that matter "for reconsideration based on the presumption against granting custody to a perpetrator of domestic violence." Appellant also requests that we remand this case to a different judge. We shall deny the requests and affirm the judgment.

The appeal presents two issues: whether the trial court erred in finding that one of respondent’s alleged prior acts did not constitute "abuse" within the meaning of the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.) and whether, as appellant also claims, "[g]ender bias disqualified the judicial officer as a matter of due process."

THE FACTS

Appellant’s opening brief focuses on the three incidents of alleged domestic violence by respondent that the trial court found did not constitute "abuse" within the meaning of the DVPA: (1) the alleged rape on January 1, 2009; (2) punching a refrigerator door near appellant’s head in 2011; and (3) slamming appellant into a door frame on November 10, 2017. However, the only allegedly abusive act as to which appellant challenges the trial court’s ruling is the punching of the refrigerator door.

The Alleged New Year’s Eve Rape

Appellant testified that in December 2008, shortly after she and respondent ended their dating relationship, he contritely begged her to give him another chance and she agreed to accompany him to a New Year’s Eve party. Respondent insisted on driving her home and she agreed because she was tired and "had a little too much to drink." When they arrived at her house, respondent said he was too tired to drive home and wanted to sleep at her house. She initially said "no," but after he "begged and wheedled and pleaded" she agreed and told him he could sleep on the couch. She then went to bed in her room on the other side of the house. Appellant "half woke up" when she felt respondent touching her waist and "pulling on" her. She slid away from him to the edge of the bed and he "reached for me, he put his hands on either side of my waist, he rolled on top of me and he—I wouldn’t call it sex. He had intercourse with me." Appellant said "stop" and "pushed him away with my hands." She tried to slide out from under him, but he "was holding my hands down at my side" and "held me down." She did not scream because no one would hear her and she thought that might make respondent more angry. Respondent did not use a condom despite the fact that he knew she had "a hereditary disease

, a blood clotting disease that prevents me from using any form of birth control" and he therefore had to always use a condom. After respondent ejaculated, appellant "screamed, ‘What did you do?’ And he said, ‘Shut the fuck up, go to bed.’ " Appellant then ran to the bathroom, took a shower, and (despite the fact that taking birth control pills could kill her) found a package and took "a bunch of them." Appellant then went online to see how many birth control pills one must take to equal a "morning after pill," "went back to the bathroom and took some more of them. And I just curled up on the couch with a blanket and cried." Appellant acknowledged that she never reported the rape to authorities.

Noting that her pleadings asserted that she wanted respondent "out of her life" after he raped her, defense counsel asked appellant about an e-mail she sent him three days after the rape, forwarding a Craigslist posting of an item for sale and joking whether that was what he wanted for Christmas. Appellant did not recall sending that e-mail, but she did recall going out to drink beer with respondent on January 18, 2009, as shown by a Facebook posting on that date, inviting respondent and his dog to take a walk with her on January 24, and commenting favorably on his Facebook postings throughout 2009. Appellant also acknowledged that six months after she was allegedly raped by respondent, she allowed him to move into her building without paying rent, and later to move into her own apartment; she invited him to her annual family gatherings in Alabama in 2009, 2010, 2011, and perhaps 2012, and agreed to have sexual contact with respondent during those gatherings; and went camping with appellant and his family for four years after the alleged rape.

Respondent contradicted appellant’s entire account of what happened on New Year’s Eve. According to him, he and appellant did not stay out late nor drink very much that night and when he took her home, she invited him inside where they continued to talk, started kissing, ended up "making out," went into her bedroom, undressed, engaged in foreplay and had sex. "At no point did she give any indication that she was not a perfectly willing participant in everything that we were doing." Appellant was not drunk and he "absolutely" did not "force himself on her in any way." Respondent stated that "[w]hen we first started dating, she was very slow to warm up to having a physical relationship and so I was very used to her indication that she was not interested in physical contact. And I’ve always been very respectful of her boundaries. And that night I was particularly sensitive because we were in sort of a broken up state and I just didn’t want to be doing anything inappropriate."

After they had sex, respondent testified, "[w]e cuddled in her bed and went to sleep like we had many times before when we were dating."

Respondent said that the next morning, "we both lamented the fact that we had again engaged—had sex without using protection. It had happened before and both times we felt sort of dumb about it afterwards, and then we amicably parted ways and I went home." There was no discussion of the morning after pill or any attempts to address the danger of unprotected sex.

After describing numerous friendly social interactions with appellant following the alleged rape in 2009, respondent testified that the first time he heard appellant "describe our daughter’s conception as nonconsensual sex" and claim that she had been raped by him in 2009, was in October of 2017, during their first meeting with a mediator.

The Punching of the Refrigerator

Appellant testified that during a 2011 argument in her kitchen about what she could feed their daughter, respondent "lunged" at her, she ran to the back door to escape, but respondent blocked her pathway. Respondent "raised his fist and he pulled it back, and he had that same look that I described on his face. You know, this was the first time after so many threats that he—I just knew that was coming from my head, I saw it coming. And I just didn’t want her—all I could see was my daughter’s face." At that point, appellant testified, respondent "kind of turned and hit the fridge." Then, "shocked at his own behavior," respondent "sort of withdrew." Respondent’s punch left a dent in the refrigerator door that was 54 inches above the floor which, appellant said, "was just about the level of my face."

The "look" appellant had previously described—"his eyes kind of bulge, his face gets red, he juts his head forward, his arms go back, he puffs his chest out, and he gets this darting around look in his eyes like an animal that’s hunting something"—occurred "when he thinks I have gone too far and he is going to get me." Appellant testified that respondent had "made fists" at her dozens of times since 2008, which she found particularly threatening because respondent had told her he had killed a man named Keith Benjamin in...